Moore v. State
| Decision Date | 20 July 1994 |
| Docket Number | No. 79A04-9310-CR-403,79A04-9310-CR-403 |
| Citation | 637 N.E.2d 816 |
| Parties | Michael N. MOORE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Thomas J. O'Brien, Lafayette, for appellant.
Pamela Carter, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-Appellant Michael Moore (Moore) appeals from his convictions of dealing in cocaine 1 and reckless possession of paraphernalia 2.
We affirm.
Moore presents two issues for our review which we re-state as follows:
1. Whether the trial court properly denied Moore's motion to suppress evidence obtained in a warrantless search of the automobile in which Moore was a passenger.
2. Whether the evidence is sufficient to support Moore's convictions.
On or about April 10, 1993, Police Officer Red Elk stopped the vehicle in which Moore was a passenger on Interstate-65 (I-65) in Tippecanoe County. Deputy Elk observed erratic driving and the vehicle speeding excessively.
After stopping the vehicle, Deputy Elk approached the vehicle and spoke with the After placing Roberts under arrest, Deputy Elk and Detective Tyrie approached Moore, who was the passenger in the vehicle. The officers observed symptoms similar to those observed with Roberts. Moore admitted that he had been smoking marijuana. A third officer, Trooper Bass, arrived on the scene. After determining that Moore was also too impaired to drive, Deputy Elk called for a tow truck and proceeded to conduct an inventory search of the vehicle. Inside a paper bag in the glove compartment Deputy Elk found numerous small plastic bags marked "pony packs." (R. 132). The bags were later determined to contain cocaine.
driver, Kenneth Roberts. Elk detected the odor of alcohol on Roberts' breath. He further observed that Roberts' eyes were red and watery and his speech was slurred. Deputy Elk administered a field sobriety test to Roberts, which Roberts failed. Detective Tyrie arrived on the scene and administered a preliminary breath test to Roberts with a resultant blood alcohol content of .05%. Roberts then told Tyrie that he had been "doing weed and speed." (R. 93). After being advised regarding implied consent, Roberts agreed to a chemical test. Roberts was placed under arrest.
Detective Tyrie secured Moore and frisked Moore for weapons. As Tyrie was frisking Moore, he pricked his finger on a sharp object. Upon investigation, Tyrie found a plastic straw with a sharp edge in Moore's pocket. The end of the straw contained a white powdery substance which was later determined to be cocaine. There were 138 individual bags of cocaine with a total weight in excess of 33 grams.
Moore was charged by information with dealing in cocaine, a class A felony; maintaining a common nuisance, a class D felony; reckless possession of paraphernalia, a class A misdemeanor; and failure to pay a controlled substance excise tax, a class D felony. Moore filed a pretrial motion to suppress evidence based on the nature of the search. The trial court denied the motion. A jury found Moore guilty of dealing in cocaine in an amount of three grams or more, and reckless possession of paraphernalia. Moore appeals.
Moore contends that the trial court erred in denying his motion to suppress evidence because the evidence was not lawfully obtained. Specifically, Moore contends that the warrantless search of his glove compartment was not a lawful inventory search and therefore violated his Fourth Amendment rights.
The trial court has broad discretion in ruling on the admissibility of evidence. We will not disturb its decision absent a showing of abuse of that discretion. Harless v. State (1991), Ind.App., 577 N.E.2d 245, 247.
Our State Constitutional provision against unreasonable search and seizure provides as follows:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.
Article I, section 11, Ind. Const. The Indiana provision is virtually identical to the Fourth Amendment to the United States Constitution.
Generally, a judicially issued search warrant is a condition precedent to a lawful search. The warrant requirement is nearly absolute, but it is subject to a few well-delineated exceptions. The burden of proof is on the State to prove that the warrantless search was conducted within the confines of one of the exceptions to the warrant requirement. Chimel v. California (1969), 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685; Harless, 577 N.E.2d at 248. Here, the State seeks refuge under the inventory exception to the warrant requirement.
The Supreme Court of the United States first recognized the so-called "inventory exception" We are asked to consider whether the warrantless search of the vehicle in which Moore was a passenger was a permissible inventory search. Requisite to a proper conclusion on this issue is a basic understanding of the rationale behind the inventory search exception. The rationale of the exception is comprised of three parts: protection of private property in police custody, protection of police against claims of lost and stolen property and protection of police from possible danger. Opperman, 428 U.S. at 396, 96 S.Ct. at 3110. An inventory search is by definition within a non-criminal context. Fair, 627 N.E.2d at 431. The courts have felt confident to dispense with the probable cause requirement for inventory searches because "[w]hen an inventory is carried out in accordance with routine police procedures, there is an assurance that the intrusion will not exceed the scope necessary to fulfill [the above-enumerated] caretaking needs." Rabadi, 541 N.E.2d at 274. The ultimate standard dictated by the Fourth Amendment and Article 1, section 11 of the Indiana Constitution is reasonableness of the police conduct. Likewise the test of constitutionality in the inventory search context is reasonableness. Fair, 627 N.E.2d at 431. The supreme court in Fair said the following:
in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). The Opperman Court held that police may conduct a warrantless search of a properly impounded vehicle if the search remains within the permissible scope of an inventory of the vehicle's contents. Id. The Indiana supreme court has recently re-affirmed its long-standing adherence to the inventory exception. Fair v. State (1993), Ind., 627 N.E.2d 427; see also Rabadi v. State (1989), Ind., 541 N.E.2d 271; Deneal v. State (1984), Ind., 468 N.E.2d 1029; Dixon v. State (1982), Ind., 437 N.E.2d 1318; Dearing v. State (1979), Ind., 393 N.E.2d 167.
In determining the reasonableness of an inventory search, courts must examine all the facts and circumstances of a case.... This examination typically encompasses two overlapping sets of circumstances. First, the propriety of the impoundment must be established because the need for the inventory arises from the impoundment. Second, the scope of the inventory must be evaluated.... In borderline cases ... the ultimate character of the search is often most clearly revealed when both the necessitousness of the impoundment and the scrupulousness of the inventorying are viewed together.
The threshold issue is whether the impoundment, which provides the underpinnings for a valid inventory search, was in fact lawful. The supreme court in Fair, 627 N.E.2d 427, held that to prevail on the issue of impoundment in terms of the community caretaking function, the prosecution must demonstrate: "(1) that the belief that the vehicle posed some threat or harm to the community or was itself imperiled was consistent with objective standards of sound policing ... and (2) that the decision to combat that threat by impoundment was in keeping with established departmental routine or regulation." Id. at 433. (Citations omitted). The needs of the community have been held to be implicated where the arrest of the driver has left the automobile unattended on a public highway. Id. Since the vehicle would have been left unattended on I-65 after the driver's arrest, the decision to impound was clearly lawful.
Having decided that the decision to impound the vehicle was proper, and thus the decision to inventory proper, the issue becomes whether the search remained within the lawful scope of a permissible inventory search. Moore filed a pretrial motion to suppress which the trial court deferred ruling on. At trial, outside the presence of the jury, the court held a suppression hearing and concluded that Deputy Elk was following department standard operating procedures on inventory searches and was conducting an inventory search. The court said that the fact that Deputy Elk came across drugs while conducting the inventory search did not render the search illegal. Specifically, the trial court judge said: "I do not believe that To pass constitutional muster the search must be conducted pursuant to police department standard operating procedures. Fair, 627 N.E.2d at 435. The Tippecanoe County Sheriff's Department standard operating procedure on inventory searches provides that:
[Elk] searched that glove box with the intent to find illegal drugs. Under the facts of this case, I believe the inventory began first. So, for that reason, I'm going to deny the [d]efendants' motion to suppress and find that the search was valid." (R. 127-128).
It will be the policy of this Department for all Officers who impound a vehicle for any reason to take the following...
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